Jill Martin, Legal Adviser to the Public Guardian, has produced an invaluable guidance note entitled „Avoiding Invalid Provisions in your LPA‟ which we strongly recommend to those involved in the creation of LPAs. The note can be found here.
Amongst the issues addressed are:
- Attorneys appointed to act jointly and severally cannot be required by the donor to decide jointly for particular transactions. Nor can the donor require a minimum number of attorneys to at any one time. Other invalid restrictions include requiring a majority view to prevail, or one attorney to defer to another, or a particular attorney‟s decision will be final. This is because joint and several appointed attorneys must all be free to act at any time.
- Attorneys appointed to act jointly means that they must all act together for all decisions. So if one of them can no longer act, the power vanishes. Invalid restrictions include requiring a majority decision, or preferential decision-making, or that a surviving attorney can continue if the others drop out. Appointing attorney to act jointly for some decisions and jointly and severally for others, it notes, can prove troublesome: "Major capital expenses jointly. Day to day expenses attorney X" would be invalid, therefore, because there were no decisions to be made jointly and severally.
- The guidance also covers invalid provisions relating to gifts and helpfully details the case law which confirms that an attorney can only provide for the needs of a family member if the donor has a legal obligation to maintain them (eg wife, civil partner, child under 18).
- Replacement attorneys can only take up their post after a MCA s.13 trigger: examples are given of invalid triggers and the complicated situations where the donee attempts to provide for replacements for joint and several attorneys.
- Third party delegation and other useful scenarios are also catered.
- From April 2013 digital LPAs can now be completed online.